The Court of Appeal has reaffirmed that spouses in Kenya are not automatically entitled to an equal 50/50 share of matrimonial property when a marriage ends. In a significant ruling, the court held that the division of matrimonial assets should be based on the contribution made by each spouse, including both financial and non-financial contributions, rather than an automatic assumption that each partner is entitled to half of the property. The decision reinforces the principle contained in Article 45(3) of the Constitution, which provides for equal rights of parties to a marriage at the time of the marriage, during the marriage and at its dissolution. The courts have previously clarified that this constitutional guarantee does not mean that matrimonial property must automatically be divided equally.

Instead, a court must examine the circumstances of each case and determine the extent to which each spouse contributed to the acquisition, improvement or development of the property in question. The Court of Appeal’s position means that a spouse seeking a share of matrimonial property must establish the contribution they made towards the acquisition or improvement of the assets. Such contribution is not limited to direct financial payments. Kenyan matrimonial property law recognises non-monetary contributions, which may include domestic work, childcare, companionship, management of family businesses or property, and other forms of support that enable the acquisition or development of family assets.

The court is therefore required to consider the circumstances of both spouses rather than simply dividing the property into two equal portions. The distinction is important because the constitutional principle of equality in marriage has sometimes been interpreted as requiring a 50/50 division of property after divorce. The courts have consistently distinguished between equal rights within a marriage and equal distribution of property when the marriage ends. A spouse may therefore have equal legal status within a marriage without necessarily receiving half of every matrimonial asset. The final allocation depends on the evidence presented and the contribution established before the court.

The decision provides an important reminder that matrimonial property disputes are determined on the facts of individual cases. Where a couple jointly acquires property during their marriage, the court may consider the respective contributions of both parties when determining ownership or the appropriate share. A spouse who did not directly contribute money towards the purchase of an asset is not automatically excluded from claiming an interest in it. Their domestic, caregiving or other non-financial contributions may also be considered. At the same time, a spouse who contributed substantially more financially is not automatically entitled to the entire property. The court must assess all relevant contributions before arriving at its decision.

The ruling therefore does not mean that women or men are barred from receiving an equal share. If the evidence establishes that both spouses contributed equally, the court can make an equal allocation. What the court has rejected is the idea that 50/50 should be the starting point simply because the parties were married. The judgment is expected to remain relevant in matrimonial property disputes because it reinforces the need for parties to provide evidence of their respective contributions when seeking a share of assets following the dissolution of a marriage.